New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-019-523, Claim No. NONE, Motion No. M-66337


Synopsis


Claimant's second motion for permission to file late claim alleging medical malpractice denied for the same reasons stated in the Court's prior Decision & Order.

Case Information

UID:
2003-019-523
Claimant(s):
MARK A. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66337
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MARK A. SMITH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 4, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is Claimant's second motion seeking permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) relating to a proposed dental medical malpractice claim. The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. DECISION & ORDER, Lebous, J., dated December 4, 2002, Claim No. None, Motion No. M-65980.
  2. Notice of Motion No. M-66337, filed January 29, 2003.
  3. Affidavit of Mark A. Smith, in support of motion, sworn to January 10, 2003.
  4. Proposed Claim, sworn to January 10, 2003.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 19, 2003, and filed February 24, 2003, with attached exhibits.
  6. Letter from Mark A. Smith to Court, dated February 21, 2003 and received by the Court on February 28, 2003.
The application currently before the Court is practically identical in sum and substance to Claimant's prior motion for permission to file a late claim alleging dental malpractice. The underlying allegations include the same references to medical personnel and dates. In fact, Claimant does not dispute that the underlying allegations are identical, but rather attempts to differentiate the applications by explaining that his first application was deemed to be a proposed medical malpractice claim, while his current application seeks relief based solely on constitutional violations. (Unsworn letter dated February 21, 2003). Claimant's attempt to distinguish these proposed claims based upon a different theory of liability is totally without merit, especially in view of the fact that this Court's prior Decision & Order specifically addressed and rejected any proposed claim alleging constitutional violations. (Smith v State of New York, Ct Cl, December 4, 2002, Lebous, J., Claim No. None, Motion No. M-65980, p 5 [UID No. 2002-019-589]).[1] In short, this motion is denied for the same reasons as set forth in this Court's prior Decision and Order. (Id.).


In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-66337, is DENIED.


March 4, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]
Unreported decisions from the Court of Claims are available via the Internet at
http://www.nyscoutofclaims.state.ny.us/decision.htm.